Guatemala will hold general elections for president, legislators, and mayors in June 2023, in a context of deterioration of human rights safeguards. Nominations for candidates opened on January 20 and continue through March.
The electoral process is governed by the Electoral and Political Parties Law (Ley Electoral y de Partidos Políticos).
Key dates in the electoral process:
⦁ January 20, 2023 – Call for nominations
⦁ March 26, 2023 – Closing of nominations and candidates’ registration.
⦁ March 27, 2023 – Beginning of electoral campaign and closing of voters’ registration
⦁ June 23, 2023 – Closing of electoral campaign and prohibition on campaign material
⦁ June 25, 2023 – Elections take place
⦁ June 25-30, 2023 – Hearing on challenges to election results.
⦁ August 20, 2023 – Run-off elections
These elections are crucial for Guatemala’s fragile democracy and will take place in a context of deterioration of the rule of law, where the institutions charged with overseeing the elections have little independence or credibility.
The following questions and answers explain the main human rights issues in the upcoming electoral process.
What is the political situation in Guatemala?
Guatemala’s democracy is facing a severe crisis. The authorities have undermined human rights safeguards and institutional checks on the abuse of power in an effort to prevent accountability for widespread high-level corruption. The Attorney General’s Office has also pursued spurious criminal charges against independent journalists, prosecutors, and judges who have investigated and exposed corruption, human rights violations, and the abuse of power.
Efforts to undermine institutional safeguards against the abuse of power have increased since the expulsion of the United Nations-backed International Commission against Impunity in Guatemala (Comisión Internacional Contra la Impunidad en Guatemala, CICIG) by then-President Jimmy Morales in late 2019. Since then, a large part of Guatemala’s justice system has been co-opted by a network of corrupt political, economic, and military elites seeking to advance their own interests and carry out corrupt practices with impunity.
Freedom of expression has also been curtailed. Several journalists have faced seemingly politically motivated criminal investigations, including José Rubén Zamora, the editor of El Periódico de Guatemala, who remains in prison. The Journalists’ Association of Guatemala reported more than 100 incidents of attacks, persecution, and criminalization of media workers in 2022, and almost 400 since the beginning of President Alejandro Giammattei’s term in 2020. In some cases, government officials have used a 2008 anti-gender-based violence law to harass journalists who write about them, claiming that the reporting is a form of “psychological violence” against officials or their female partners.
In addition, the government has targeted civil society groups. In July 2021, a new law with onerous requirements for nongovernmental organizations to operate in the country entered into force. The authorities have also failed to prevent or investigate physical attacks against Indigenous and human rights activists.
Which institutions oversee the electoral process?
Under international human rights law, governments should protect citizens’ right to vote and participate in public affairs by ensuring that there is an independent electoral authority that can supervise elections fairly and impartially. Other independent institutions, such as courts, can also play a key role in ensuring free and fair elections. They should act as a check on attempts to make the playing field uneven, including, among others, by impeding arbitrary disqualifications or prosecutions of political opponents, preventing the partisan use of government resources in campaigns, investigating unlawful campaign financing, and ensuring respect for the rule of law.
In Guatemala, the key institutions charged with carrying out these and other important tasks are the Supreme Electoral Tribunal, the Comptroller General, and the Attorney General’s Office. The Supreme Court and the Constitutional Court are charged with reviewing decisions by these bodies, which can affect Guatemalans’ right to vote in free and fair elections. Many authorities in charge of these entities and courts have been appointed through unfair and non-independent processes, and some have shown an open disregard for the rule of law.
The Supreme Electoral Tribunal (Tribunal Supremo Electoral, TSE) is the highest authority in electoral matters in Guatemala. It has five magistrates and five substitute magistrates, who are elected by Congress.
The Tribunal organizes the electoral process; declares and validates the final results; controls the registration, sanctioning, suspension or cancellation of political parties; and audits campaign financing.
In 2020, Congress appointed the current 5 members for 2020-2026 through a process that lacked transparency. The process was driven by “political interests,” according to Guatemala Visible, a civic group that monitored the process. The committee charged with nominations to fill court vacancies changed its operating rules during the process to allow it to include pro-government candidates who would have otherwise been excluded because of their limited academic or professional experience.
Prosecutors opened an investigation into one of the current magistrates, Ranulfo Rojas, for his alleged role in corruption, but the Constitutional Court blocked the investigation.
Under Guatemalan law, the Comptroller General’s Office is responsible for safeguarding the use of public funds. Congress appoints the comptroller general from a short list of six candidates selected by a 23-member nominating commission composed of the rector of a national university, the deans of the public accounting and auditing faculties in the country, and the representatives of two existing professional associations for accountants and auditors.
The comptroller general plays a key role in preventing corruption and is crucial to ensuring free and fair elections. Current and former officials and other people who have handled public funds who wish to run for public office must obtain a certificate from the comptroller to confirm that they are not under investigation for misuse of public funds. In the 2019 election, the office did not issue certificates to several opposition candidates in presidential and local elections, effectively barring them from running. For example, courts and the Comptroller General’s Office barred former Attorney General Thelma Aldana, who had worked closely with the CICIG from running for president.
In November 2022, Congress appointed a new comptroller general, Frank Bode Fuentes.
Guatemala’s Supreme Court of Justice (Corte Suprema de Justicia, CSJ) consists of 13 justices, who are elected by Congress for a five-year term.
The court is the country’s highest appeal body and, among other responsibilities, rules on lawsuits known as amparos that challenge acts that “imply a threat, restriction or violation of the rights that the Constitution and the laws guarantee.” It also authorizes investigations of government officials, such as lawmakers and others who are immune from prosecution.
The current justices were appointed in 2014 through a process that, according to the CICIG, was marred by irregularities, influence peddling, and bribes.
Their terms expired in October 2019, but Congress has failed to appoint new justices amid allegations of irregularities. In October 2022, the justices ordered the extension of their time in office until their successors are appointed.
In September, the court reinstated justice Blanca Stalling, who had been suspended from the court in 2017 due to an investigation by the CICIG into her alleged involvement in influence peddling.
The United States government has included four of the current members of the court on the Undemocratic and Corrupt Actors Lists of 2021 and 2022, popularly known as the “Engel list,” for undermining “democratic processes or institutions.” People included in the list are ineligible for US visas.
Guatemala’s Constitutional Court (Corte de Constitucionalidad) consists of five judges who resolve constitutional questions, including appeals of amparo decisions issued by the Supreme Court. The president, Congress, the Supreme Court of Justice, the Bar Association, and a public university each elect one member of the court.
The current justices were appointed in 2021, through processes that in some cases were neither fair nor independent. The election process was not based on merit, according to Impunity Watch, an organization that monitored the process, and candidates credibly linked to corruption were allowed to participate.
Additionally, some of the appointments raise concerns about the judges’ actual or perceived independence from the government and other actors involved in the upcoming electoral process. President Giammattei named Leyla Lemus Arriaga, who was then a top legal advisor to his government. The Supreme Court appointed Roberto Molina Barreto, who in 2019 had run for vice president along with Zury Ríos, who is expected to be among the frontrunners in the 2023 presidential elections.
The public university reappointed Gloria Porras, who as a Constitutional Court justice had ruled in favor of judicial independence and respect for human rights. In 2017, the Inter-American Commission on Human Rights called on Guatemalan authorities to protect Gloria Porras, after finding evidence that she had faced “harassment” and seemingly “unfounded” criminal cases that appeared to be designed to “hamper her work as a judge.”
In April 2021, though, Congress refused to swear her in on the basis of dubious allegations that there had been irregularities in the process to appoint her. The university reviewed and rejected the allegations and insisted that she be appointed. But the Constitutional Court annulled her election and ordered a repeat process. Gloria Porras fled Guatemala, fearing persecution.
The US government has included one of the current Constitutional Court justices, Nester Mauricio Vásquez Pimentel, in the Engel list, accusing him of “abusing his authority to inappropriately influence and manipulate the appointment of judges to high court positions.”
The Attorney General’s Office has an important role to play in elections, including by investigating efforts to undermine voters’ rights. Its Special Prosecutor’s Office for Electoral Crimes is charged with investigating such crimes as coercion of voters, breaching vote secrecy, and unlawful campaign financing.
The current attorney general, Consuelo Porras, has undermined investigations into corruption and human rights abuses, including by arbitrarily transferring or firing independent prosecutors, including the Special Prosecutor’s Office against Impunity chief, Juan Francisco Sandoval, whose office was investigating several corruption cases originally handled by the CICIG.
Her office has also brought arbitrary prosecutions against independent judges, prosecutors and journalists, including Erika Aifán, a judge who had ruled on high-level corruption cases, and Virginia Laparra, an anticorruption prosecutor who has been imprisoned since February. At least two dozen judges and prosecutors have fled the country after seemingly spurious criminal charges were filed against them.
In May 2022, President Giammattei reappointed Consuelo Porras for a second term, after a selection process marred by several attempts by government authorities and others to undermine its fairness and to erode the independence of the commission charged with nominating candidates.
In September 2021, the United States included Consuelo Porras – and her assistant, Ángel Pineda – in the “Engel list,” saying that they had “obstructed investigations into acts of corruption by interfering with criminal investigations.”
Why is oversight of electoral financing important?
The CICIG found that unlawful campaign financing was the “origin of corruption and coopting of the state in Guatemala, [which are] perverse phenomena that distort Guatemala’s democratic model.” The Commission found evidence that unlawful campaign financing led to corruption, which resulted in the illicit enrichment of politicians and their financial backers. The financial backers later used part of these illicit funds for political campaigns, resulting in the “perpetuation of a perverse circle.” The Commission also received information and investigated financing of political campaigns by organized crime groups in the country.
After CICIG-led investigations and massive protests in 2015, Congress passed several reforms that sought to make the financing of political parties more transparent, including by creating a specific unit charged with handling this issue in the Supreme Electoral Tribunal.
After the 2019 elections, the presidential runner-up, Sandra Torres, was arrested on charges of illicit electoral financing allegedly committed during her 2015 presidential campaign. Likewise, the Union of National Change (Unión del Cambio Nacional, UCN) presidential candidate, Mario Estrada, was disqualified after he was arrested in the US on charges of drug trafficking. However, prosecutors and judges have undermined efforts to investigate these and other politicians allegedly involved in unlawful financing of political campaigns.
What role can the international community play?
Given the lack of independence of key institutions charged with overseeing the electoral process, the international community should play an assertive role in protecting Guatemalans’ rights to vote and participate in free and fair elections.
In January 2023, the European Union conducted an “exploratory electoral mission” in the country. In October 2022, the secretary general of the Organization of American States (OAS), Luis Almagro, expressed his interest in sending electoral observers to Guatemala. The authorities have not yet announced whether the OAS observers will be allowed to monitor the elections.
Electoral observers should conduct a thorough examination of the conditions prior to election day, including the possible exclusion of candidates and the use of spurious criminal charges to keep candidates from running. They should also take into account any reliable reports, including from Guatemalan journalists and nongovernmental organizations, of unlawful financing of campaigns and urge the authorities to take effective action to prevent unlawful financing and investigate those responsible in an independent and impartial manner.
Foreign governments, including Latin American and European governments, and the United States, should also closely monitor electoral conditions, including allegations of unlawful financing of campaigns, and impose targeted sanctions against businesspeople and government officials who undermine the rule of law to press them to end their abuses.